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October Term, 1911. 



The United States, plaintiff in error, 

v.\ 
The Baltimore and Ohio Southwestern Rail- 
road Company. 



IN ERROR TO TEE DISTRICT CO URT OF TEE UNITED STATES 
FOR TEE SO UTEERN DISTRICT OF O.HIO. 



BRIEF FOR THE UNITED STATES. 



• / *. 






Jit the jlitjjtt nw tyonrt of the United states. 

October Term, 1911. 



The United States, plaintiff in error, 

v. 

The Baltimore and Ohio Southwest- 

ern Railroad Company. 



No. 464. 



IN ERROR TO THE DIS TRICT CO UR T OF THE UNITED S TA TES 
FOR THE SOUTHERN DISTRICT OF OHIO. 



BRIEF FOR THE UNITED STATES. 



STATEMENT. 

The Baltimore and Ohio Southwestern Railroad 

Company was indicted in the Southern District of 

Ohio for violations of the act of March 3, 1905 (33 

Stat., 1264), entitled "An act to enable the Secretary 

of Agriculture to establish and maintain quarantine 

districts, to permit and regulate the movement of 

cattle and other live stock therefrom, and for other 

purposes." 

the indictment 

was in three counts, each charging a different offense, 
but the offenses were all of the same nature. It will 
be sufficient for the purposes of this case to consider 
only the first count. (Rec, 2-4.) 

767—11 1 



This charged that the company was a common car 
in i owning and operating a inn ol railroad hi the 
State «>i ( >ln<» and other ! itates, and that this line wrh 
a connecting <>iu- over which interstate shipments <>i 
live stock originating in the Btate «»i Kentucky and 
consigned i<> the Union Btocl< Vards "i the city <>f 
Cincinnati) in ili<- Btate <»l < > 1 1 1 * > , were carried and 
i ransported to i heir destinal ion ; 

That the Becretary ol Agriculture had determined 
the fact that f\ contagious and communicable disease 
known as scabies existed among sheep in the Btate <>l 
Kentucky, and on tl>c 5th day ol August, 1009, made 
and promulgated ;in order and regulation known as 
amendment l to rule 3, revision I , B A I < h'der I Hi, 
establishing a quarantine <>i the entire territory «»i the 
Btate <»i Kentucky, which quarantine became effective 
on and after the 16th day <»i August, 1909; 

That the Becretary <>f Agriculture, pursuant to law, 
had made and issued certain regulations effective <>n 
and after the 1 5th day <>! April, 1.907, which provided 
loi and governed the inspection, disinfection, oertifi 
cation, treatment, handling, and the method and 
manner of delivery and shipment ol sheep from ojuar 
antined Btatos or Territories nii<> any other Btate or 
Territory, and that these provisions, requirements, 
Hid regulations, being 31 to 37, B, A. I. Order I 13, 
were incorporated into and made a part oi the order, 
amendmenl I to rule 3, revision I , i> A [.Order I 16; 

That ilu* Beorotary of Agriculture gave notice ol 
the establishment <>i ojuarantine in the Btate <>i Ken 
lucky and of ili<* making and issuance ol the rules 



8 

;ui<l regulations heretofore referred to, by sending 
printed copies to the railroad company, receipt ol 
such copies being acknowledged by the general man 
ag< i ol the compan / , 

That the Secr< tary ol Agriculture also gave notice 
ol the establishment ol the Quarantine and ol the 
orders, rules, and regulations hereinbefore mentioned 
by publication in newspapers <>'t general circulation 
in the . (tate ol Kentucfc y , 

That on August 2, 1910, a shipment ol 151 sheep 
was made at Danville, in the Stat< ol Kentucky, and 
within the Quarantined area, by w n Lillard, con 
signed to Greene, Embry & Company, at Cincinnati, 
in Hi' State ol Ohio; that the sheep were loaded and 
delivered for transportation to The Cincinnati, New 
Orleans & Texas Pacific Railway Company and taken 
(>y that company ovej its line to b point in the city 
ol Cincinnati, in the State ol Ohio, and there deliv 
wed to the Baltimore and Ohio Southwestern Rail 
-I Company, which in turn took them ovei its line 
ol road in th< State ol Ohio to the Union Stock JTards, 
city ol Cincinnati, the destination ol the shipment, 
and delivered them to the consign* i ., 

That the car containing this shipment ol sheep, 
while it was being handled by the Baltimore and Ohio 
outhwestern Railroad Company, did not have af 
fixed to both or either ol its side*, or at all, placards 
bearing the words (t Dipped scabby sheep" oi the 
words " ) Jxposed sheep foi slaughtt < ," ai r< quired by 
the orders and regulations ol the Secretary ol Agri 
culture; and the waybills, conductors' manifests, 



memoranda, and bills of lading pertaining to the 
shipment did not have written or stamped upon their 
face the words " Dipped scabby sheep" or "Exposed 
sheep for slaughter/' as required by the orders and 
regulations of the Secretary of Agriculture; contrary 
to the form of the statute in such case made and pro- 
vided, and against the peace and dignity of the United 
States of America. 

The defendant pleaded not guilty to the indictment 
(R., 10), but the court disposed of the case in the 
manner disclosed by the following 

ENTRY OF JUDGMENT. 

It appearing to the court that an indictment 
has been filed herein charging the defendant, 
The Baltimore and Ohio Southwestern Rail- 
road Company, with a violation of the act of 
Congress of March 3rd, 1905, 33 Statutes, 
1264, and the rules and regulations of the Sec- 
retary of Agriculture made and promulgated 
thereunder, in that said defendant, a common 
carrier, did receive and transport in and about 
the city of Cincinnati, in the State of Ohio, 
certain shipments of sheep originating in the 
State of Kentucky, which last mentioned State 
had theretofore been quarantined in accord- 
ance with law for "Scabies in sheep;" that 
said defendant did not receive said shipments 
of sheep in said quarantined State of Ken- 
tucky and did not transport the same there- 
from, but did receive and transport the same 
wholly and entirely outside of said quaran- 
tined State, and after the same had been 
transported therefrom by another carrier; 



And it further appearing to the court that 
a fundamental point of law involved in this 
case has been heretofore decided by this court 
adversely to the United States in cases similar 
in all respects to the one now before the court, 
to wit, in cases Numbers 730, 731, and 736 in 
this court, entitled The United States of 
America versus The Baltimore & Ohio South- 
western Railroad Company, wherein demur- 
rers to the informations were sustained; it 
being the decision of this court therein that 
the defendants could not be held to answer 
said charge, because said informations upon 
their faces showed that said defendant had 
not received the shipments of sheep in question 
in the quarantined State of Kentucky and had 
not transported the same from said quaran- 
tined State, but that said defendant had 
received said shipments of sheep at a place, 
and had transported the same through places, 
wholly and entirely without said quarantined 
State of Kentucky; and that such facts, in the 
opinion of this court, did not constitute a vio- 
lation of the aforesaid act of Congress; 

Now, therefore, this court, inquiring into 
this case upon its own motion and for the pur- 
pose of enabling the United States to have the 
question here at issue reviewed, doth find that 
the indictment herein is not well founded in 
point of law and doth hereby quash the same 
and each count thereof, for the reasons herein- 
before mentioned; and it is the judgment of 
this court that the indictment herein be, and 
the same hereby is, dismissed. (R., 10, 11.) 



6 

The case is brought here by the Government by 
writ of error to review this judgment and ruling of 
the District Court. 

In an appendix hereto we set out — 

1. The act of March 3d, 1905, except the fifth sec- 
tion thereof, which section has no possible relevancy 
to the case. 

2. The report of the House Committee on Agriculture 
upon the bill. This report was approved and adopted 
by the Senate Committee on Agriculture as its own. 
The bill, except as to its fifth section, not relevant 
here, was passed into law in the precise form in which 
it was reported. 

3. Regulations of the Secretary of Agriculture made 
and promulgated April 3d, 1907, as Order No. 143 of 
the Department of Agriculture, B. A. I. We set 
these out from No. 29 to 37, both inclusive, these 
numbers being the entire general code of " Regula- 
tions to prevent the spread of scabies in sheep." 

4. Amendment ^ to Rule 3, Revision 1, effective on 
and after August 16, 1909. This is the order de- 
claring the existence of scabies among sheep in Ken- 
tucky and declaring a quarantine in the State. 
Regulations 31 and 32 are printed on the reverse side 
of this order, but are not set forth in this connection 
in the appendix, because they are contained in the 
regulations printed under the third head. 

The sole question considered by the lower court 
was that with respect to the construction of the stat- 
ute, and the determination of the court was that the 



statute applied only to the carrier taking the sheep 
in the quarantined State and transporting them 
without the State, and did not apply to any succeed- 
ing carrier who received the sheep outside of the 
quarantined State and continued or completed the 
transportation of them to the point of their destina- 
tion. The Government contends for the 

PROPOSITION 

that the statute applies to the shipment of sheep 
from a quarantined State or Territory into any 
other State or Territory of the Union and to every 
carrier participating in such shipment, not alone 
the initial carrier who takes up the sheep in the 
quarantined district and carries them without, but 
as well to every succeeding connecting carrier doing 
any part of the work of transportation necessary 
to bring the shipment from its place of beginning 
to its place of destination. 



ARGUMENT. 

The act under consideration was H. R. 17589. The 
same bill was introduced in the Senate as Senate bill 
7167. The House bill became law. 

The act has been before the courts a number of 
times. In three reported cases the question here 
involved was presented for determination and de- 
cided in two of them adversely and in the third and 
latest favorably to the Government. 

The question is in itself one of great practical 
importance, and the diversity of ruling in the lower 
courts makes a definite and final decision upon it 
highly desirable. 



This court took notice of the act in Asbell v. Kansas 
(209 U. S.; 251), but had occasion to say little more 
than that "large powers to control the interstate 
movement of cattle liable to be afflicted with a com- 
municable disease have been conferred upon the 
Secretary of Agriculture by the act of February 2, 
1903, 32 Stat. 791, and the act of March 3, 1905, 33 
Stat. 1264" (p. 257). 

The first reported prosecution under the act was 
in United States v. L. & N. R. R. Co. (165 Fed., 936), 
in the Western District of Kentucky; but all the mat- 
ters there passed upon related to the formal suffi- 
ciency of the indictment, and as no such questions 
are here involved that case calls for no consideration 
at the present time. 

In United States v. Louisville & Nashville Railroad 
Company (176 Fed., 942) the application of the law 
to connecting carriers was not involved. The case 
none the less calls for consideration because the 
court held, upon the authority of United States v. 
Grimaud (170 Fed., 205), that a charge of crime 
could not be based upon a violation of the regula- 
tions provided for in section three of the act, and 
that section four was therefore of no practical effect. 

But the ruling of the court in the Grimaud case 
was reversed by this court at the October Term, 1910, 
and a violation of the regulations there involved 
was held to be a violation of the law pursuant to 
which they were made. {United States v. Grimaud, 
220 U. S., 506.) 



The analogy between the Grimaud case and the 
one at bar is a very close one. There is in neither 
case a delegation of lawmaking power to the Secre- 
tary. In each case the crimes or offenses punish- 
able under the act are defined by the act itself. In 
the present case the duties imposed upon the Secre- 
tary are plainly administrative in their nature. 

Section 1 simply imposes upon the Secretary the 
duty to ascertain and declare the existence of con- 
tagious diseases in live stock in any State or Terri- 
tory as a fact, and requires that upon the ascertain- 
ment and declaration of the fact he shall establish a 
proper quarantine and give notice thereof to the 
transportation companies and the general public. 

Section 2 prohibits the receiving for transportation, 
or transporting, live stock from any quarantined 
State or Territory into any other State or Territory, 
except as later provided in the act. 

Section 3 authorizes and directs the Secretary of 
Agriculture, when the public safety will permit, to 
promulgate rules and regulations in accordance with 
which live stock may be inspected, disinfected, cer- 
tified, treated, handled, delivered, and shipped from 
a quarantined State or Territory into any other 
State or Territory, and requires that notice of these 
rules and regulations shall be given to the transporta- 
tion companies and to the general public. There is 
nothing in this that is in the nature of enacting law. 
The proper safeguarding of live stock which is either 
diseased or has been exposed to disease, when this is 
to be shipped from one part of the country to another, 



10 

is plainly an administrative matter properly imposed 
upon the Secretary of Agriculture, because it requires 
expert knowledge which, it must be presumed, repre- 
sentatives of the Department of Agriculture possess. 
The particular regulations will depend upon the 
nature of the disease and its extent, and are therefore 
to be adapted to each particular emergency. 

Section 4 of the act qualifies the otherwise absolute 
ban upon a shipment of live stock from a quarantined 
State into another State imposed by section 2, and 
provides, first, that live stock may be moved from a 
quarantined State into any other State under and in 
compliance with the rules and regulations made and 
promulgated by the Secretary of Agriculture; and, 
second, that it shall be unlawful to move live stock 
from a quarantined State into any other State or 
Territory in any manner or method or under condi- 
tions other than those prescribed by the Secretary 
of Agriculture. 

Section 6 punishes any violation of section 2 or 
section 4 of the act. 

Plainly it is Congress which defines the offense, for 
it is Congress that has directed the Secretary to make 
the regulations in accordance with which live stock 
may be moved out of a quarantined State and it is 
Congress that has prohibited their movement except 
in compliance with those regulations. 

The House Committee carefully considered the 
adjudications upon the acts of 1884 and 1903, as 
their report discloses, and they had especially in 
mind that the power of the Secretary could not be 



11 

extended to the making of regulations which in 
themselves had the force of law or which did more 
than administer the law which Congress enacted. 

Under the law governing forest reserves there was 
no absolute right to anybody to make use of the 
reserves, but as there might be a use of them by 
individuals which was not opposed to the purposes 
of the law, the Secretary of Agriculture was author- 
ized to prescribe regulations under which such use 
might be enjoyed, and a violation of these regulations 
was declared by the law to be a crime. Grimaud was 
held to have offended this law because he pastured 
his flock in a reserve in disregard of the regulations 
prescribed by the Secretary. 

In the case at bar Congress, in the exercise of 
undoubted powers, dealt with the subject of the 
interstate movement of cattle which were afflicted 
with or had been exposed to a communicable disease. 
It determined that such movement could not prop- 
erly be left free or at the will of the owners, and yet 
to prohibit it altogether and in all cases of a quar- 
antine would entail great and unnecessary hardship. 
The exigencies of each case could not possibly be 
foreseen and provided for in advance by law. It 
was given by the law to the Secretary to determine 
as a matter of fact whether the disease existed, 
and thereupon to establish a quarantine, and in 
like manner it was given to him by the law to deter- 
mine as a fact of the same kind whether in any case 
"the public safety would permit" the movement of 
the cattle from the district of quarantine into another 



12 

State; and, if so, to prescribe the precautions with 
which such movement should be attended. The 
interstate movement in other manner from a quaran- 
tined district was made an offense by the law. The 
Secretary was empowered simply to ascertain as a 
fact, what was a matter of fact, and might exist 
at one time or place and not at another, the exist- 
ence of the conditions which called the law into 
operation, and then to administer the law in such 
manner as the conditions of fact ascertained by 
him required. 

This was in strict conformity with what was said 
in Field v. Clark (143 U. S., 649), and cited with 
approval in the Grimaud case, viz: 

* * * "The legislature cannot delegate 
its power to make a law ; but it can make a law 
to delegate a power to determine some fact or 
state of things upon which the law makes, or 
intends to make, its own action depend. To 
deny this would be to stop the wheels of gov- 
ernment. There are many things upon which 
wise and useful legislation must depend which 
cannot be known to the law-making power, 
and, must, therefore, be a subject of inquiry 
and determination outside of the halls of 
legislation" (p. 694). 

Sections three and four of the law are therefore 
valid, and are as much to be taken into account in 
determining what are offenses against it as are sec- 
tions one and two. 

United States v. El Paso and N. E. R. R. Co. (178 
Fed., 846), like the case at bar, was an indictment of a 



13 

connecting carrier who took the shipment from the 
initial carrier outside the quarantined State and 
carried it to its destination. The case was con- 
sidered solely with reference to sections one and two 
of the law and the connecting carrier held not to be 
within their scope. The opinion of the court is sup- 
ported by no authority and by no argument, and as 
to this question is in full as follows (pp. 847, 848) : 

Owing to the pressure of official engagements 
the court can do little more than state its con- 
clusions. 

1 . It was the intention of Congress, as mani- 
fested by the second section of the act, to 
punish only the carrier which transports cattle 
from a quarantined district, and not the car- 
rier to which cattle ma}^ be subsequently 
delivered by the first carrier for transportation, 
although they may be from such a district. 
To be more specific: According to the alle- 
gations of the indictment, the Chicago, Rock 
Island & Pacific Railway Company received 
in Texas county, Okl., and transported to 
New Mexico, and there delivered to the 
defendant, the two head of cattle in question. 
The cattle were then transported by the 
defendant to El Paso, Tex. Construing the 
law, as applied to the allegations of the indict- 
ment, the carrier amenable to punishment, if 
justified by all the evidence of the case, would 
be the Chicago, Rock Island & Pacific Railway 
Company, and not the defendant, since the 
latter did not transport, from a quarantined 
district, cattle to be transported into any state 
or territory. In other words, the initial car- 



14 

rier, receiving or transporting the cattle, and 
not subsequent ones, would be punishable 
under the act. 

United States v. C, B. & Q. R. R. Co. (181 Fed., 
882) was also the case of a connecting carrier, and the 
ruling was the same as in the preceding case. 

The cattle were shipped from Maud, in the State of 
Oklahoma, a quarantined district, through Kansas 
to St. Joseph, Missouri. The regulations required 
that the car should be placarded as containing 
" southern cattle," and that the waybills, etc., should 
so designate them. In fact, the car was not placarded 
at all, and the waybills, etc., designated the shipment 
as being " native cattle." The Missouri, Kansas & 
Texas Railway Company was the initial carrier and 
was necessarily cognizant of and participated in this 
false description in the billing and was also responsible 
for the failure to placard the car. This company took 
the cattle in Oklahoma, through Kansas to Kansas 
City, Missouri, there delivering them in the original 
car to the defendant company, which continued and 
completed the transportation to St. Joseph, Missouri. 
The defendant had no knowledge of the kind of cattle 
being shipped, and no information as to the origin of 
the shipment except as it was advised by the way- 
bills. 

The court commented upon the failure to prosecute 
the initial carrier, which apparently had been guilty 
of an intentional violation of the law, but why 
it was not proceeded against does not appear. 



15 

In reaching the conclusion that the defendant was 
not guilty, the court did not consider sections 3 
and 4 of the law at all, and in construing section 2, 
which alone it took into account, left quite out of view 
the purposes of the law. Indeed, after eliminating 
all the sections of the law save one, the remaining 
section is not fully quoted, and it is not surprising 
that after so much and such severe surgery there is 
little life left in the law. The court thus states the 
statute, as it applies to railroad companies: 

"That no railroad company . . . shall 
receive for transportation . . . from any 
quarantined state or territory, etc., into any 
other state or territory . . . any cattle 
or other live stock, except as hereinafter 
provided." 

Upon the statute thus stated the court comments 

(p. 885) : 

It is only the railroad company that re- 
ceives "for transportation from any quaran- 
tined state into any other state or territory any 
cattle or other live stock" that may be guilty 
of a misdemeanor provided for in the sixth 
section of the act. Such transportation, as 
applied to the situation under consideration, 
must be interstate to give jurisdiction to this 
court over the offense. It was the Missouri, 
Kansas & Texas Railway Company that re- 
ceived the cattle in the State of Oklahoma for 
transportation. It crossed the line with the 
cattle, bringing them through the States of 
Oklahoma and Kansas into Kansas City, Mo., 



16 

where the car was transferred by it to the de- 
fendant, which only carried the car from Kan- 
sas City to St. Joseph, within the state of 

Missouri . 

But the statute, section 2, limited to railroads, in 
fact, reads: 

That no railroad company . . . shall 
receive for transportation or transport from 
any quarantined State or Territory . . . 
into any other State or Territory . . . 
any cattle or other live stock, except as here- 
inafter provided. (33 Stat. 1264). 

Receiving cattle for transportation from Oklahoma 
to Missouri may well be said to be the act only of the 
initial carrier, but transporting them from Oklahoma 
to Missouri, when that requires passage over two 
lines of railroad, operated by two companies, is an 
act participated in by them both and which could not 
be completed except by their cooperation. 

The court proceeds (pp. 885, 886) : 

The succeeding clause of section 2 of the 
statute is as follows: 

" Nor shall any person, company or corpora- 
tion deliver for such transportation to any 
railroad company, etc., nor shall any person, 
company or corporation drive on foot or 
cause to be driven on foot, or transport in 
private conveyance or cause to be transported 
in private conveyance from a quarantine 
state or territory, etc., into any other state 
or territory, etc., any cattle or other live 
stock, except as hereinafter provided." 



17 

Thus again indicating that only the person, 
company, or corporation that drives or causes 
to be driven or transported in private con- 
veyances, etc., such live stock " from a quaran- 
tine state, etc., into another state, etc., any cat- 
tle or other live stock," is subjected to punish- 
ment by the statute. Nothing whatever is ex- 
pressed by the statute respecting the liability 
of any connecting carrier or driver of the cattle 
after they pass beyond the quarantine district 
into another state or territory. Suppose that 
the shipment in question had been from Maud, 
Okl., to Chicago, and been carried by the 
Missouri, Kansas & Texas Railway Company 
in its car through the States of Kansas, Mis- 
souri, and Illinois, with the car not placarded 
and the waybill just as the one in question, 
would there have been more than one offense'? 
The only offense for which it could have been 
indicted would have been for shipping the 
cattle from the state of Oklahoma into another 
state without complying with the regulations 
of the Department of Agriculture. The offense 
was completed by the last-named act the 
moment it crossed the line between Oklahoma 
and Kansas. Can it make any difference, 
under the language of the statute, that after 
the Missouri, Kansas & Texas Railway Com- 
pany got across the line into Kansas it turned 
over the transportation of the car for carriage 
to its destination to another carrier? The 
statute has neither in terms nor spirit subjected 
both the carrier that brought the cattle out 
of Oklahoma into Missouri and the connecting 

767—11—2 



L8 

carrier, who completes the unfinished part of 
the transportation inside of the Latter state, 
to punishment. 

Undoubtedly in the case supposed by the court 
the Missouri, Kansas and Texas Railway Company 
would l>o guilty of I >iil one offense, for the transporta- 
tion of the cattle was but one act or transaction and 
participated in bybut one carrier. And this offense 

Was in a sense complete when (lie company brought 

the cattle into Kansas From Oklahoma without the 
required placarding and billing, even though there- 
after and before reaching Chicago it did comply with 
the regulations. A man driving For ton miles over 
a highway upon which the rate of speed is restricted 
violates the law il he drives For the first mile at a pro- 
hibited rate, and if he so drives For the entire ten 
miles lie continues his offense, but he does not 
multiply it by ten. As this court said in the Snow 
case (120 U. S., 274, I. c. 284), "it is but one entire 
offense, whether longer or shorter in point of dura- 
tion." Acts continuous in their nature, as the ex- 
ercise of a trade or calling, in violation of law, or the 
maintenance of a nuisance, constitute but one offense, 
no matter liow protracted the offending, unless the 
law itself provides, as it may, For more. So the 
Missouri, Kansas and 'Texas Railway Company 
would be guilty of bul one offense though it disre- 
garded the quarantine throughout the transportation 
of the cattle, and it would have been equally guilty 
if it disregarded the quarantine For any portion of the 
way. 



10 

The baker who kept open his shop on Sunday was 
guilty of but one offense, although ho kopt it. opon 
all day and sold many loaves oi bread. Hw offense, 
too complete, in a way, when ho sold hi:-, first 

loaf- Ho continued, but did not multiply it. If, 
however, he had conducted the shop in the morning 
and called in his son to i ttend it in the afternoon, 
the rould also have been guilty. The act of 

keeping \ r hop open on Sunday, considered as an 
offense, would now no! be single and indivisible, or, 
if so, still - misdemeanor, aJJ who partici- 

-: be g lilty as prirjoipaJ-. 
The co .' n • • because there e a com- 

pleted offense when the Missouri, Ki c - and Texas 
Railway Company cro sed the State line with the 
cattle there could be no farther offending with re- 
set to thorn by anybody, not even by the Mis- 
souri, Kansas and Texas Comp; 

The baker offended with every loai of his bread 
that ho -.old on the Sunday none the less that ho 
Id be convicted and punished for but one often e 
The charge against him, although single, could bo 
supported by c e .-.•. i e by him and 

i -//: oi several - .- by 0:00: of 

all of thorn. 
So the railroad company would continue to offend 
mile it prog 1 ithout placarding the car, 

:. thoug qo furthei penalty 

This d • so, unless the .- ■■■ restrict :. f : apphV 

fcioB -. the quarantine regulations tc the portion 
of thi • • - 1 the quar- 



20 

antined State to the crossing of the adjoining State 
line. 

If, however, the quarantine regulations apply to 
the interstate shipment in its entirety, then there 
may be as many offenders against the law as there 
are carriers concerned in the shipment. The vice of 
the adverse decisions in the district court is that they 
cut in two both the law and the shipment, and deal 
with but a half of each. 

The last case is that of The United States v. The 
Southern Railway Company (187 Fed., 209). 

Here the entire act was taken into consideration, 
and the shipment, a through one, from New Market, 
Alabama, to Greenville, South Carolina, was dealt 
with as one continuous act of interstate transporta- 
tion, and, it having been made in violation of the 
regulations of the Secretary, the connecting carrier 
as well as the initial carrier was held to be guilty. 

And considering the statute in its entirety and the 
purposes for which it was enacted, the court had no 
doubt that it was applicable to an interstate ship- 
ment of live stock from the place of origin to the 
place of destination. 

As a part of the statute, too, we must take into 
consideration the regulations made under it. These 
are as to sheep in a district quarantined for scabies, 
that if inspected and found free from disease and 
from exposure to it, they may be shipped out of the 
State on the certificate of the inspector. If found 
diseased they must, as a condition of being shipped, 
be dipped once if intended for immediate slaughter 



21 

and twice if intended for feeding or stocking purposes. 
If they are not diseased, but have been exposed, they 
may be shipped without dipping for immediate 
slaughter, and after one dipping for feeding or 
stocking purposes. 

Section 32 then provides for the mode of shipping 
and prescribes the duties of the carriers. The sheep 
must be billed for what they are — "dipped scabby 
sheep" or "exposed sheep for slaughter." This 
must be shown on all the waybills, manifests, etc. 
The car containing the sheep must be placarded to 
show the kind of sheep it contains, the placard and 
the lettering upon it to be of a prescribed size. The 
section concludes: 

Whenever such shipments are transferred 
to another transportation company or into 
other cars or into other boats, or are rebilled 
or reconsigned to a point other than the original 
destination the cars into which said sheep are 
transferred and the new waybills, conductors' 
manifests, memoranda, and bills of lading cov- 
ering such shipments by cars or boats shall be 
marked as herein specified for cars first carry- 
ing said sheep and for the billing, etc., covering 
the same. If for any reason the placards re- 
quired by this regulation are removed from 
the car or are destroyed or are rendered illegi- 
ble, they shall be immediately replaced by the 
transportation company or its agents, the in- 
tention being that legible placards shall be main- 
tained on the cars from the time of shipment until 
they arrive at destination, and the disposition of 
the cars is indicated by an inspector of the 
Bureau of Animal Industry. 



22 

This regulation and all the others apply of course 
only to interstate shipments. 

Certainly it was competent for Congress to authorize 
a regulation which was operative from the beginning 
to the end of the shipment. In support of this it is 
not necessary to more than refer to cases like Leisy v. 
Hardin (135 U. S., 100), and Kelley v. Rhoads (188 
U. S., 1), or, indeed, to any of the many cases that 
have dealt with the question of when interstate com- 
merce begins and when it ends. 

The intention of the framers of the law was to 
authorize such a regulation, for the report of the 
House Committee says: 

It is therefore obvious that contagious dis- 
eases of live stock cannot be stamped out if 
animals which have been exposed and which 
are capable of communicating the infection, 
but which are not themselves actually dis- 
eased, can be trailed or shipped from State to 
State without restriction. As the law stands 
at present, any person may trail or ship cattle 
or sheep from a Western or Southern State to 
the State of Illinois, spreading infection in every 
State through which the cattle pass, and yet, 
unless the Government can show both that 
the cattle were not only infected but actually 
diseased, and that the person moving them 
knew them to be diseased, no penalty can be 
imposed by the Federal Government. 

As tending to control and eradicate the contagious 
diseases of animals in the United States, they recom- 
mend the law in question. They meant to exert 



23 

the full power of Government, limited at best 
in a case like this, and so extended the regulations 
authorized by section 3 to " the movement of cattle 
from a quarantined State or Territory into any other 
State or Territory." 

The purpose of the act absolutely required regula- 
tions of the scope of those adopted by the Secretary; 
that is, attending upon the shipment from begin- 
ning to end. Certain diseases of animals, as here 
scabies, are communicable. The purpose of the act 
is to prevent the spread of this disease through the 
channels of interstate commerce. If the sheep are 
diseased they will carry contagion wherever they go. 
If they have been exposed even though they them- 
selves escape the disease they may still spread the 
germs of contagion. The danger does not cease 
when the first State line is crossed, but continues as 
long as the infection lasts. The cattle shipped from 
Maud, Okla., to St. Joseph, Mo., if they were in- 
fected with Texas fever did not lose that infection 
by crossing the line that marks the division of terri- 
tory between Oklahoma and Kansas. And the 
sheep in the present case were not cleansed of con- 
tagion by delivery from the initial carrier to the 
Baltimore and Ohio Southwestern Company for trans- 
fer to the Union Stock Yards. This was the time, 
above all others, when precaution should be taken. 
As diseased or exposed sheep they should be taken 
to the quarantined yard, and not to the general yard 
where they would be brought into contact with hun- 
dreds or thousands of uninfected cattle. 



24 

We respectfully submit that the law does accom- 
plish what its authors intended and what its efficiency 
requires. 

Section three of the law provides: 

That it shall be the duty of the Secretary 
of Agriculture, and he is hereby authorized 
and directed, when the public safety will 
permit, to make and promulgate rules and 
regulations which shall permit and govern 
the inspection, disinfection, certification, 
treatment, handling, and method and manner 
of delivery and shipment of cattle or other 
live stock from a quarantined State or Terri- 
tory or the District of Columbia, and from 
the quarantined portion of any State or 
Territory or the District of Columbia, into 
any other State or Territory or the District 
of Columbia; and the Secretary of Agriculture 
shall give notice of such rules and regulations 
in the manner provided in section two [one] 
of this Act for notice of establishment of 
quarantine. 

It was said in Rhodes v. Ioioa (170 U. S., 412, 1. c. 
422), that " the subtle signification of words and the 
niceties of verbal distinction furnish no safe guide 
for construing the act of Congress. On the contrary, 
it should be interpreted and enforced by the light of 
the fundamental rule of carrying out its purpose and 
object, of affording the remedy which it was intended 
to create, and of defeating the wrong which it was its 
purpose to frustrate." The present statute is so 
plain that no subtlety or nicety of verbal distinction 
can obscure its meaning. The regulations authorized 



25 

by section 3 are to govern the " delivery and shipment 
of cattle or other live stock from a quarantined State 
or Territory or the District of Columbia * * * 
into any other State or Territory or the District of 
Columbia." This means not simply the delivery for 
shipment, which would confine it to the initial carrier, 
but the delivery and shipment. It is not merely the 
shipment from a quarantined State that is regulated, 
but also the shipment into another State, and the other 
State is not restricted to an adjacent State, but 
includes any State of the Union. 

The statute deals with the shipment always as an 
entirety, and always as " from any quarantined State" 
and "into any other State." Five times the move- 
ment or shipment which is the subject of regulation 
is described in the statute and always in terms of 
"from any quarantined State" and "into any other 
State." 

The shipment is in fact as well as in law an indi- 
visible thing. There can be no shipping from one 
jurisdiction without shipping into another. And the 
important phase of this entire and indivisible thing 
is the shipping or moving "into any other State." 
The disease exists in the quarantined State and the 
purpose is to keep it from spreading " into any other 
State," near or far. What an absurd thing to impute 
to the law, that it prescribes precautions to be ob- 
served while moving within the quarantined State 
where the disease already exists, but which may be 
disregarded the moment the line is crossed and a State 
is reached in which the disease does not exist, but into 



26 

which it may be carried if the precautions are neg- 
lected. And yet that is the result if the two cases 
decided by the District Courts adversely to the Gov- 
ernment were correctly decided. If in the case of 
United Stales v. C, B. & Q. R. R. Co., supra, the of- 
fense, and the only offense possible under the act, was 
complete " the moment it (the shipment) crossed the 
line between Oklahoma and Kansas/' and so, as a 
consequence, no succeeding and connecting carrier 
could be guilty of any offense, then by the same token 
the original or initial carrier could not be guilty of any 
offense of omission or commission after it had crossed 
the line. So if the placard had been removed or de- 
stroyed or rendered illegible, there would not be upon 
it any obligation to obey the requirement of regula- 
tion 32, that it "be immediately replaced by the 
transportation company or its agents." More than 
this, the initial carrier, when it crossed the State line, 
might strip the placard from the car and change its 
waybills, moving the shipment thenceforth as one 
neither diseased nor exposed to disease. A conven- 
ient law this would be for unscrupulous carriers and 
shippers, but it would fail in every purpose of its 
enactment. 

No case of interstate shipment can be imagined in 
which there is such requirement that the shipment 
be regarded as an unbroken transaction from begin- 
ning to end as where quarantine is involved. The 
greater the distance of shipment the greater the 
danger of spreading disease. Stock moving from a 



27 

quarantined State to an adjacent State might not be 
unloaded and yarded en route at all. It would be a 
source of danger only at its destination. But stock 
going through many States must be unloaded and 
yarded every twenty-eight hours, and at each place 
where this was done a center of infection would be es- 
tablished. And so to limit the quarantine regulations 
to the mere crossing of the first State line is to strike 
them down altogether and the law as well. 

The District Court construed this law as the 
bourgeois of Falaise construed the order of the city 
authorities requiring anyone out at night to carry a 
lantern. The bourgeois, upon being arrested for a 
violation of this order, exhibited a lantern. "But," 
said the officer, " there is no candle in your lantern." 
He replied, " The order said nothing about a candle." 
He was admonished that a lantern without a candle 
was useless for the purposes of the order and per- 
mitted to go his way. The next night he was ar- 
rested again, and now he exhibited a lantern with a 
candle in it. "But," said the officer, "the candle is 
not lighted." "And," replied the bourgeois, "there 
was nothing in the order or the admonition requiring 
the candle to be lighted." 

In the narrow spirit of the bourgeois has this law 
been construed. The requirement of a lantern in the 
night is of one trimmed and burning and lighting up 
the darkness, and so to construe the requirement is 
not to add anything to it, but only to give effect to it. 
To extend the quarantine regulations provided for by 



28 

this act to the entire course of an interstate shipment 
of diseased or exposed cattle or sheep adds not a word 
to the act nor takes a word from it, but only gives to 
the words employed the effect which it is manifest 
they were intended to have. 

It is respectfully submitted that the judgment of 
the District Court should be reversed. 

F. W. Lehmann, 

Solicitor General. 

July, 1911. 



APPENDIX. 



A. 



Act of March 3, 1905, 33 Stat., 1264, "To enable the 
Secretary of Agriculture to establish and maintain 
quarantine districts, to permit and regulate the 
movement of cattle and other live stock therefrom, 
and for other purposes." 

Be it enacted by the Senate and House of Representa- 
tives of the United States of America in Congress assem- 
bled, That the Secretary of Agriculture is authorized 
and directed to quarantine any State or Territory or 
the District of Columbia, or any portion of any State 
or Territory or the District of Columbia, when he 
shall determine the fact that cattle or other live stock 
in such State or Territory or District of Columbia are 
affected with any contagious, infectious, or communi- 
cable disease; and the Secretary of Agriculture is 
directed to give written or printed notice of the estab- 
lishment of quarantine to the proper officers of rail- 
road, steamboat, or other transportation companies 
doing business in or through any quarantined State 
or Territory or the District of Columbia, and to pub- 
lish in such newspapers in the quarantined State or 
Territory or the District of Columbia, as the Secretary 
of Agriculture may select, notice of the establishment 
of quarantine. 

Sec. 2. That no railroad company or the owners or 
masters of any steam or sailing or other vessel or boat 
shall receive for transportation or transport from any 
quarantined State or Territory or the District of Co- 
lumbia, or from the quarantined portion of any State 

(29) 



30 

or Territory or the District of Columbia, into any 
other State or Territory or the District of Columbia, 
any cattle or other live stock, except as hereinafter 
provided ; nor shall any person, company, or corpora- 
tion deliver for such transportation to any railroad 
company, or to the master or owner of any boat or 
vessel, any cattle or other live stock, except as here- 
inafter provided; nor shall any person, company or 
corporation drive on foot, or cause to be driven on 
foot, or transport in private conveyance or cause to 
be transported in private conveyance, from a quar- 
antined State or Territory or the District of Colum- 
bia, or from the quarantined portion of any State or 
Territory or the District of Columbia, into any other 
State or Territory or the District of Columbia, any 
cattle or other live stock, except as hereinafter pro- 
vided. 

Sec. 3. That it shall be the duty of the Secretary 
of Agriculture, and he is hereby authorized and di- 
rected, when the public safety will permit, to make 
and promulgate rules and regulations which shall 
permit and govern the inspection, disinfection, cer- 
tification, treatment, handling, and method and man- 
ner of delivery and shipment of cattle or other live 
stock from a quarantined State or Territory or the 
District of Columbia, and from the quarantined por- 
tion of any State or Territory or the District of Co- 
lumbia, into any other State or Territory or the 
District of Columbia; and the Secretary of Agricul- 
ture shall give notice of such rules and regulations in 
the manner provided in section two [one] of this Act 
for notice of establishment of quarantine. 

Sec. 4. That cattle or other live stock may be 
moved from a quarantined State or Territory or 
the District of Columbia, or from the quarantined 



31 

portion of any State or Territory or the District of 
Columbia, into any other State or Territory or the 
District of Columbia, under and in compliance with 
the rules and regulations of the Secretary of Agri- 
culture, made and promulgated in pursuance of the 
provisions of section three of this Act; but it shall 
be unlawful to move, or to allow to be moved, any 
cattle or other live stock from any quarantined 
State or Territory or the District of Columbia, or 
from the quarantined portion of any State or Ter- 
ritory or the District of Columbia, into any other 
State or Territory or the District of Columbia, in 
manner and method or under conditions other than 
those prescribed by the Secretary of Agriculture. 

Sec. 6. That any person, company, or corporation 
violating the provisions of sections two or four of 
this Act shall be guilty of a misdemeanor, and on 
conviction shall be punished by a fine of not less 
than one hundred dollars nor more than one thou- 
sand dollars, or by imprisonment not more than one 
year, or by both such fine and imprisonment. 



B. 



House Report No. 4200, Fifty-eighth Congress, third session. 
QUARANTINE DISTRICTS FOR LIVE STOCK. 

February 3, 1905. — Referred to the House Calendar and ordered to be 

printed. 

Mr. Haskins, from the Committee on Agriculture, 
submitted the following report : 

[To accompany H. R. 17589.] 

The Committee on Agriculture, having had under 
consideration the bill (H. R. 17589) to enable the 
Secretary of Agriculture to establish and maintain 
quarantine districts, to permit and regulate the move- 
ment of cattle and other live stock therefrom, and 
for other purposes, respectfully submit the following 
report with the recommendation that the bill do pass : 

The existing law having reference to quarantine of 
live stock in infected districts, and for the suppres- 
sion and extirpation of contagious, infectious, and 
communicable diseases in live stock, is embodied in 
the act of May 29, 1884 (23 Stat. L., 30), and the act 
of February 2, 1903 (32 Stat. L., pt. 1, 791). 

The first-named act is that providing for the estab- 
lishment of the Bureau of Animal Industry. The 
first two sections thereof have reference to organiza- 
tion. 

Section 3 provides for the cooperation of the Com- 
missioner of Agriculture and the State and Territorial 
authorities for the suppression and extirpation of 

(32) 



33 

diseases in animals. That is, in order that the law 
become effective, the rules and regulations promul- 
gated by the Commissioner of Agriculture must be 
accepted by the State or Territorial authorities, or 
the plans and methods adopted by the State or Ter- 
ritory must be accepted by the Commissioner of 
Agriculture. And it was only by such agreed coop- 
eration that the Commissioner of Agriculture was 
authorized to expend such portion of the money 
appropriated under said act as he might deem neces- 
sary in the suppression and extirpation of diseases of 
live stock. 

Section 4 provides that, to promote exportation of 
live stock, the Commissioner of Agriculture is author- 
ized to make special investigation as to the existence 
of pleuro-pneumonia or any other contagious or com- 
municable disease, reporting the results of his inves- 
tigation to the Secretary of the Treasury, who, from 
time to time, was authorized to establish such regu- 
lations concerning the exportation and transporta- 
tion of live stock as the results of said investigation 
might require. 

Section 5 authorizes the Secretary of the Treasury, 
in order to prevent the exportation of diseased live 
stock from any part of the United States, to take 
such steps and adopt such measures as he might deem 
necessary, not inconsistent with said act. 

Section 6 is a prohibition upon railroad companies, 
owners, or masters of steam or sailing vessels from 
receiving for transportation from one State or Terri- 
tory to another, or into the District of Columbia, live 
stock affected with any contagious disease, and espe- 
cially that of pleuro-pneumonia; or any person, com- 
pany, or corporation from delivering to such railroad 

767—11 3 



34 

or transportation company any live stock, knowing 
the same to be affected with any contagious, infec- 
tious, or communicable disease; or any person, com- 
pany, or corporation to drive on foot or to transport 
in private conveyance, from one State or Territory to 
another, live stock, knowing the same to be affected 
with any contagious, infectious, or communicable dis- 
ease, and especially the disease known as pleuro- 
pneumonia. 

Section 7 provides for the notification by the Com- 
missioner of Agriculture to transportation companies 
and persons doing business in infected districts by 
notice in writing and by publication of the existence 
of said contagion; that any person or persons oper- 
ating a transportation company, or persons having 
control of live stock in said infected districts, who 
shall knowingly violate the provisions of section 6 
shall be guilty of a misdemeanor, and upon conviction 
shall be punished by a fine of not less than $100 or 
more than $5,000, or by imprisonment for not more 
than one year, or by both, in the discretion of the 
court. 

Section 1 of the act of February 2, 1903, transferred 
the powers conferred on the Secretary of the Treasury 
by section 4 of the first-mentioned act to the Secre- 
tary of Agriculture, including among the contagious 
diseases that known as the foot-and-mouth disease. 
And it authorized the Secretary of Agriculture from 
time to time to establish such rules and regulations 
concerning the exportation and transportation of 
live stock from any place in the United States when 
he had reason to believe such diseases existed into 
and through any State or Territory, including the 
Indian Territory, and into and through the District 
of Columbia, and to foreign countries, as he might 



35 

deem necessary, "and all such rules and regulations 
shall have the force of law." 

Section 2 authorizes the Secretary of Agriculture 
to make all necessary regulations and to take such 
measures as he might deem proper to prevent the 
introduction or dissemination of the contagion, or of 
any contagious, infectious, or communicable diseases 
by animals from a foreign country into the United 
States, or from one State or Territory to another, 
and to seize, quarantine, and dispose of, etc., when 
in his judgment such action is advisable. 

Section 3 imposes a fine of not less than $100, or 
not more than $1,000, or imprisonment for not more 
than one year, or both, as a penalty for the violation 
of the rules and regulations promulgated by the Sec- 
retary of Agriculture, su^h violation being declared a 
misdemeanor. 

It has been found that both of the aforesaid acts 
are defective in their provisions, and are wholly inad- 
equate to accomplish the purposes which Congress 
had in view at the time they were enacted. The 
Supreme Court of the United States in the case of 
Reid v. Colorado (187 U. S., 137) declared that the 
act of May 29, 1884, conferred power upon the Sec- 
retary of Agriculture to institute quarantine meas- 
ures only when the State affected had adopted the 
measures of the Bureau of Animal Industry or when 
the Bureau of Animal Industry had approved the 
-measures of the State looking to the suppression and 
extirpation of contagious diseases. 

Regarding the interstate movement of cattle, the 
Supreme Court in the same case said : 

" Congress went no further than to make it an 
offense against the United States for anyone know- 
ingly to take or send from one State or Territory to 



36 

another State or Territory, or into the District of 
Columbia or from the District into any State, live 
stock affected with infectious or communicable 
diseases. The animal-industry act did not make it an 
offense against the United States to send from any 
State into another live stock which the shipper did 
not know were diseased." 

The case of the United States v. Slater, reported in 
123 Federal, page 115, takes the same view of the 
act of 1884. In the case of the United States v. 
Alex. Hoover, an unreported case, in the district 
court of Nebraska, the court, after quoting a portion 
of the opinion of the Supreme Court in the case of 
Reid v. Colorado, said: 

" The act of Congress, then, being limited to cases 
where the animals were affected with an infectious or 
communicable disease, it was not within the power 
or authority of the Secretary of Agriculture to 
extend the act and by an order or regulation bring 
within its penal provisions matters which were not 
criminal by the terms of the act." 

From the aforesaid cases it seems to be well settled 
that to constitute an unlawful movement of cattle 
from State to State, under the act of 1884, two ele- 
ments must concur, viz, (1) the cattle must be 
diseased; (2) the person moving them must know 
that they are diseased. Consequently, under this act 
exposed cattle, or cattle which are diseased but which 
the shipper does not know are diseased, may be 
moved with entire freedom from prosecution, and 
there is no affirmative provision in the law compelling 
the shipper to submit his cattle to inspection before 
shipment in order to form an intelligent opinion as to 
whether or not they are in fact diseased. 



37 

After the decision of the Supreme Court in the case 
of Reid v. Colorado had been handed down it was felt 
that the act of May 29, 1884, was defective, and the 
act of February 2, 1903, was passed. As will be 
seen, this latter act transferred certain powers vested 
in the Secretary of the Treasury to the Secretary of 
Agriculture. 

The authority contained in this act for the Secretary 
of Agriculture to make rules and regulations con- 
cerning the interstate movement of live stock and 
providing that these rules and regulations shall have 
the force and effect of law is, on its face, a very broad 
provision, and it is believed that it was the intention 
of Congress thereby to place in the hands of the 
Secretary of Agriculture absolute control of the 
interstate movement of all cattle, whether diseased 
or clean, coming from infected territory, in order to 
extirpate contagious diseases of animals. Acting 
under the provisions of the act of February 2, 1903, 
the Secretary of Agriculture has, from time to time, 
issued various rules and regulations quarantining 
and regulating the movement of both diseased 
and exposed animals from certain affected localities. 
Violations of these rules and regulations have oc- 
curred, and in attempting to secure the punishment 
of the guilty persons through the courts it has been 
found that it is settled law that the rules and regula- 
tions of an administrative officer may not go beyond 
the statute under which the rules and regulations 
are issued. In other words, as was stated by the 
supreme court of Arizona in the case of Dent v. 
United States (71 Pacific, 920) : 

"The act of June 4, 1897 (30 Stat. L., 33), is an 
unconstitutional delegation of legislative power to the 
Secretary of the Interior in so far as it authorizes him 



38 

to specify that the performance of certain acts shall 
constitute a crime." 

In the case of the United States v. Alex. Hoover, 
above referred to, the court said, referring to the act 
of February 2, 1903: 

"The act nowhere attempts to prohibit the ship- 
ment of animals which are free from disease, and if 
Congress intended to empower the Secretary of 
Agriculture to make rules and regulations, the viola- 
tion of which alone should constitute a crime, it was 
an unconstitutional delegation of legislative authority. 
While Congress may authorize the executive head of 
any department of the Government to make binding 
rules and regulations which are administrative in 
character, it can not delegate the authority to make 
laws." 

It is therefore obvious that contagious diseases of 
live stock can not be stamped out if animals which 
have been exposed and which are capable of com- 
municating the infection, but which are not them- 
selves actually diseased, can be trailed or shipped 
from State to State without restriction. As the law 
stands at present, any person may trail or ship cattle 
or sheep from a Western or Southern State to the 
State of Illinois, spreading infection in every State 
through which the cattle pass, and yet, unless the 
Government can show both that the cattle were not 
only infected but actually diseased, and that the 
person moving them knew them to be diseased, no 
penalty can be imposed by the Federal Government. 

If contagious diseases of animals are to be con- 
trolled and eradicated in the United States, it is 
respectfully submitted that the following additional 
legislation is needed : 



39 

1. Power to declare a quarantine of any State or 
Territory or any portion of any State or Territory 
where the existence of contagious diseases of cattle 
or other live stock is proven, due notice to be given 
of the establishment of quarantine to transportation 
companies and to the general public. This is covered 
by the first section of the proposed bill. Of course, 
if a portion of a State were quarantined, cattle could 
be moved from the quarantined portion of that State 
to any other part of the same State and the jurisdic- 
tion of the Federal Government would not attach. 

2. A provision that no cattle or other live stock 
shall be moved from a quarantined State or Territory 
to any other State or Territory except under certain 
prescribed conditions. This is covered by section 2 of 
the proposed bill. 

3. Direction to and authority in the Secretary of 
Agriculture to make rules and regulations under 
certain conditions governing and permitting the 
movement of cattle from a quarantined State or Ter- 
ritory to any other State or Territor} r , with due pro- 
vision for promulgation of notice of these regulations 
and conditions to interested parties and to the general 
public. This is covered by section 3 of the proposed 
bill. 

4. Providing that it shall be unlawful to move cattle 
or other live stock from a quarantined State or Ter- 
ritory into any other State or Territory except in the 
manner prescribed by the rules and regulations of 
the Secretary of Agriculture. This is provided for in 
section 4 of the proposed bill. 

5. Imposing a heavy penalty for an assault or 
attack with a deadly weapon upon an inspector of 
the Bureau of Animal Industry while said inspector 
is engaged in the performance of his official duty. 



40 

This provision is very necessary. During the past 
year two vicious, deadly, and unprovoked assaults 
have been made upon inspectors engaged in the per- 
formance of their official duties, and it was found 
that no statute existed under which the perpetrators 
could be proceeded against in the Federal courts. 
This is provided for in section 5 of the proposed bill. 
6. Imposing a penalty for the violation of the pro- 
visions of sections 2 and 4 of the proposed bill. This 
is covered by the last section. 



c. 



REGULATIONS TO PREVENT THE SPREAD OF SCABIES 

IN SHEEP. 

Effective April 15, 1907. 

Regulation 29. No sheep which are diseased with 
scabies shall be shipped, trailed, otherwise removed, 
or allowed to drift from one State, Territory, or the 
District of Columbia, into another State, Territory, 
or the District of Columbia, except as hereinafter 
provided; and no sheep shall be shipped, trailed, 
otherwise removed, or allowed to drift from a State 
or Territory or portion thereof quarantined for the 
disease of scabies in sheep into another State, Ter- 
ritory, or the District of Columbia, except as herein- 
after provided, until the sheep shall have been 
inspected by an inspector of the Bureau of Animal 
Industry, found to be free from the disease and from 
exposure thereto, and are accompanied by a certifi- 
cate from the said inspector. All of the sheep in a 
certain flock or shipment in which the disease is 
present shall be classed as diseased sheep, and none 
of them shall be removed or offered for interstate 
shipment until dipped as hereinafter provided. The 
practice of " picking" a flock — i. e., removing sheep 
which are visibly diseased and then offering any por- 
tion of the remaining sheep for either inspection or 
interstate shipment, or both — is directly and posi- 
tively prohibited. 

(41) 



42 

Regulation 30. Healthy sheep in an area not 
quarantined for the disease of scabies in sheep which 
have not been exposed to the disease may be shipped 
or trailed interstate without restriction by the regu- 
lations of the Secretary of Agriculture to prevent the 
spread of scabies in sheep; but if said sheep be un- 
loaded en route or at destination and are placed in 
infectious premises they shall thereafter be treated 
as exposed sheep and shall not be forwarded to des- 
tination for purposes other than immediate slaughter 
until they shall have been dipped under the super- 
vision of an inspector of the Bureau of Animal In- 
dustry. 

Regulation 31. Sheep that are diseased with 
scabies and that have been dipped once in one of the 
approved dips, under the supervision of an inspector 
of the Bureau of Animal Industry within ten days of 
date of shipment, may be shipped interstate for imme- 
diate slaughter to a recognized slaughtering center, 
and when so shipped the said sheep shall not be 
diverted en route and shall be slaughtered within 
two weeks after arrival at destination. If diseased 
sheep are to be shipped interstate for stocking or 
feeding purposes they shall be dipped twice as above 
indicated, ten days apart, and shall be submitted to 
inspection before shipment. 

Sheep that are not diseased with scabies, but which 
have been exposed to the contagion of the disease, 
may be moved interstate for feeding or stocking 
purposes after one dipping, or they may be shipped 
interstate by rail or boat to a recognized slaughtering 
center for immediate slaughter without dipping. 

Regulation 32. — When diseased sheep have been 
dipped once and are shipped interstate for slaughter 
in accordance with Regulation 31, or when exposed 



43 

sheep are shipped interstate without dipping for 
immediate slaughter in accordance with Regulation 
31, the proper officers of the transportation company 
shall affix to both sides of each car a durable placard 
not less than 5 J by 8 inches in size, on which shall be 
printed with permanent black ink in bold-face letters 
not less than 1 J inches in height the words " dipped 

SCABBY SHEEP" Or " EXPOSED SHEEP FOR SLAUGHTER," 

as the case may be. These placards shall also show 
the name of the place from which the shipment was 
made, the date of the shipment (which must corre- 
spond with the date of the waybills and other papers) , 
the name of the transportation company, and the 
name of the place of destination. Each of the way- 
bills, conductors' manifests, memoranda, and bills of 
lading pertaining to such shipments by cars or boats 
shall have the words " dipped scabby sheep" or 
"exposed sheep for slaughter," as the case may 
be, written or stamped upon its face. Whenever 
such shipments are transferred to another trans- 
portation company or into other cars or into other 
boats, or are rebilled or reconsigned to a point other 
than the original destination the cars into which 
said sheep are transferred and the new waybills, con- 
ductors' manifests, memoranda, and bills of lading 
covering such shipments by cars or boats shall be 
marked as herein specified for cars first carrying said 
sheep and for the billing, etc., covering the same. If 
for any reason the placards required by this regula- 
tion are removed from the car or are destroyed or 
rendered illegible, they shall be immediately replaced 
by the transportation company or its agents, the in- 
tention being that legible placards shall be maintained 
on the cars from the time of shipment until they 
arrive at destination, and the disposition of the cars 



44 

is indicated by an inspector of the Bureau of Animal 
Industry. 
Regulation 33. — The dips now approved are: 

(a) The tobacco-and-sulphur dip, made with suf- 
ficient extract of tobacco or nicotine solution to give 
a mixture containing not less than five one-hun- 
dredths of 1 per cent of nicotine and 2 per cent flow- 
ers of sulphur: Provided, That for the first dipping 
of infected sheep, in lieu of the sulphur herein pre- 
scribed, a sufficient additional amount of extract of 
tobacco or nicotine solution shall be used to give a 
mixture containing not less than seven one-hun- 
dredths of 1 per cent of nicotine. 

(b) The lime-and-sulphur dip, made by mixing 
8 pounds of unslaked lime and 24 pounds of flowers 
of sulphur and boiling with 30 gallons of water for 
not less than two hours. All sediment should be 
allowed to subside before the liquid is placed in the 
dipping vat. This liquid should be diluted suffi- 
ciently to make 100 gallons before use; 

And pending further investigation, the following- 
described dips: 

(c) The cresol dip, which consists of a mixture of 
cresylic acid " with soap. When diluted ready for 
use this dip should contain one-half of 1 per cent of 
cresylic acid. 

(d) The coal-tar creosote dip, which is made by 
mixing coal-tar creosote or coal-tar oils and cresylic 
acid separately with resin soap in varying proportions. 
This dip should contain when diluted ready for use 
not less than 1 per cent by weight of coal-tar oils and 
cresylic acid. In no case should the diluted dip 

a By the term cresylic acid as used in these regulations is meant cresols 
and other phenols derived from coal tar, none of which boils below 185° 
0. nor above 250° C, 



45 

contain more than four-tenths of 1 per cent nor less 
than one-tenth of 1 per cent of cresylic acid; but 
when the proportion of cresylic acid falls below two- 
tenths of 1 per cent the coal-tar oils should be in- 
creased sufficiently to bring the total of the tar oils 
and the cresylic acid in the diluted dip up to 1.2 per 
cent by weight. 

The cresol dip and the coal-tar creosote dip should 
always be tested on a small scale with the water and 
under the conditions to be employed in dipping in 
order to avoid possible injury to stock. The diluted 
sample should be allowed to stand for at least an 
hour. If after this length of time there is a separa- 
tion of an oily layer the dip should not be used with 
that kind of water. Especial care in this connection 
is necessary where hard water is to be used. 

In the undiluted coal-tar creosote dips there may 
be, in cold weather especially, a separation of naph- 
thalene and other constituents of the dip. Care 
should therefore be taken to see that the concentrated 
dip is homogeneous in character before using any 
portion of it. 

Manufacturers who desire the Department to ap- 
prove their dips for official dipping should submit a 
sample of their product to the Bureau of Animal 
Industry in Washington and accompany this with 
the formula used in preparing the dip. 

Before a proprietary substance is approved for 
use in official dipping the manufacturer must agree 
as follows : 

(1) To recommend for sheep scab a dilution of his 
product which is approved b}^ the Department of 
Agriculture. 

(2) To maintain his product of uniform composi- 
tion. 



46 

(3) To place on packages of dips which have been 
approved the following statement : 

A sample of this product has been submitted to the 
Department of Agriculture for examination. We 
guarantee the contents of this package to be of the 
same composition as the sample submitted to the 
Department, and that when diluted according to the 
directions printed hereon for the treatment of sheep 
scab it will give a dipping fluid of the composition 

required of a a dip by the regulations of the 

Secretary of Agriculture governing sheep scab. 

(4) To have on containers or advertising matter no 
reference to the United States Government or any of 
its Departments except as provided in the preceding 
paragraph. 

Regulation 34. The dipping shall be done care- 
fully and the sheep handled as humanely as possible. 
The Department disclaims responsibility for any loss 
or damage resulting from the dipping, and those who 
wish to avoid any risks that may be incident to dip- 
ping at the stock yards, as well as to avoid liability to 
prosecution, should see that their sheep are free from 
disease before shipping them to market. 

Regulation 35. Sheep shipped interstate under a 
certificate from an inspector of the Bureau of Animal 
Industry are not guaranteed uninterrupted transit; 
for in the event of the discovery of scabies or of ex- 
posure thereto en route the sheep shall thereafter be 
handled as diseased or exposed sheep, as hereinbefore 
provided, and the cars or other vehicles and the chutes, 
alleys, and pens which have been occupied by them 
shall be cleaned and disinfected, as hereinafter pro- 
vided. 

a There should be inserted here the name of the class of dips to which the 
product belongs, such as "cresol" or "lime and sulphur," etc. 



47 

Regulation 36. Public stock yards shall be con- 
sidered infectious and the sheep yarded therein as 
having been exposed to the disease, and no sheep shall 
be shipped interstate therefrom, except for immediate 
slaughter, without dipping. Where, however, a part 
or all of the stock yards is reserved and set apart for 
the reception of uninfected shipments of sheep and is 
kept free of disease, sheep may be shipped interstate 
from the uninfectious yards or portions thereof without 
dipping. If diseased sheep are introduced into the 
uninfectious yards or portions thereof, they shall be 
immediately removed therefrom and the chutes, 
alleys, and pens occupied by the said sheep shall be 
thoroughly cleaned and disinfected. No sheep shall 
be shipped interstate for feeding or stocking purposes 
from any stock yards where an inspector of the Bureau 
of Animal Industry is stationed without a certificate 
of inspection or of dipping issued by the said inspector. 

Regulation 37. Cars and other vehicles, yards, 
pens, sheds, chutes, etc., that have contained diseased 
sheep shall be cleaned and disinfected in the following 
manner : Remove all litter and manure and then sat- 
urate the interior surfaces of the cars and the wood- 
work, flooring, and ground of the sheds, alleyways, 
and pens with a solution containing 5 per cent of pure 
carbolic acid or with a solution containing 2 per cent 
of cresol. When cresol is used it must be mixed with 
soft soap in order to render it easily soluble in cold 
'water. Cars and premises are not required to be 
cleaned and disinfected on account of their having 
contained "dipped scabby sheep" that have been 
dipped within ten days or sheep that have been 
exposed to scabies. In determining exposure, all 
sheep in a flock or shipment in which disease is 
present shall be classed as diseased. 



D. 



(Amendment 4 to 
B. A. I. Order 146.) 



United States Department of Agriculture, 

BUREAU OF ANIMAL INDUSTRY. 



AMENDMENT 4 TO RULE 3, REVISION 1.— TO PREVENT THE 
SPREAD OF SCABIES IN SHEEP. 



Effective on and after August 16, 1909. 



United States 
Department of Agriculture, 

Office of the Secretary. 

The fact has been determined by the Secretary of 
Agriculture, and notice is hereby given, that a con- 
tagious, communicable disease known as scabies exists 
among sheep in the State of Kentucky. 

Now, therefore, I, James Wilson, Secretary of 
Agriculture, under authority conferred by section 1 
of the act of Congress approved March 3, 1905 (33 
Stat., 1264), do hereby quarantine the following area, 
to wit: 

All territory situate within the boundaries of the 
State of Kentucky. 

It is ordered by this Amendment 4 to Rule 3, 
Revision 1, under the authority and discretion con- 
ferred upon the Secretary of Agriculture by section 3 

(48) 



49 

of the act of Congress approved March 3, 1905 (33 
Stat., 1264), that sheep in the State of Kentucky shall 
be moved therefrom to any other State or Territory 
or District only in accordance with Regulations 31 
to 37, inclusive, of the regulations of the Secretary of 
Agriculture designated as B. A. I. Order 143, pro- 
mulgated March 22, 1907, and effective April 15, 1907, 
as amended, and that all inspections and dippings 
required under said Regulations 31 to 37, inclusive, 
shall be made at points where Federal inspection is 
maintained. 

Done at Washington this fifth day of August, 1909. 

Witness my hand and the seal of the Department 
of Agriculture. 

[seal.] James Wilson, 

Secretary of Agriculture. 

O 

767—11- 4 



LB '12 



LIBRARY OF CONGRESS 




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